The complainant, a civil engineer, is an Evangelical Christian who asserts that one of the tenets of his religion requires him to speak to people about Jesus and share the Gospel with them.  Following informal complaints from co-workers the complainant was asked to desist from doing so.  There followed a number of events where the complainant was observed engaging in the expression of his faith by a variety of employees of the respondent, none of which he denied.  After each the respondent engaged in disciplinary processes ultimately dismissing the complainant for continuously failing to comply with the directions of senior members of the Council staff and for continuing to preach and promote his religious beliefs to members of the public during normal working hours.

In his own evidence the complainant mentions his compulsion to speak about his religion.  The respondent asserted that he presented this compulsion to them during the various investigations saying “it was a compulsion he could not explain”, “that he had a compulsion to share his faith and it was like someone with a passion for a football team”, and that “his religions beliefs were very strong and he felt compelled to talk about Jesus and he found it difficult to stop”.  The respondent’s evidence, in respect of one of the investigations described at 3:15 of the Decision, is that while the complainant’s actions amounted to gross misconduct where the sanction could be dismissal, instead he was placed on suspension and required to attend counselling to control the compulsion.

The complainant, through his representative, presented the provisions of the respondent’s Employee Handbook, the fact that there was no policy providing for the actions it took, the Constitutional provisions contained in Article 44.2.1, the Framework Directive, relevant articles, the UN Convention on Human Rights at articles 9 and 14 along with Article 6 of the Treaty of the European Union, the ECHR case Larissis & others v Greece EHRR329 in addition to Eweida & Others v United Kingdom.  The Equality Officer was also referred to a passage in Bolger, Bruton & Kimber, Employment Equality Law, which stated inter alia “The European Court of Human Rights has emphasised that nor every discussion about religion between individuals could justify the taking of action and justification would arise from evidence of harassment or undue pressure”.

The respondent presented cases from the UK EAT Chondal v Liverpool City Council [2009] EAT 0298-08-1102 and Ladele v London Borough of Islington [2009] EWCA Civ 1357.

The Equality Officer first made a finding that a manifestation of religion was covered by the religion ground in the Employment Equality Acts.  Her finding on direct discrimination was that the complainant was treated less favourably than other employees due to the number of staff clearly apprised of his beliefs who were watching him and reporting him to management.  She stated that she was satisfied the complainant established a prima facie case of discriminatory treatment in relation to his conditions of employment and dismissal which the respondent had failed to rebut.

Following some consideration of the religious composition of the workforce in Ireland generally, and applying that to the respondent, the Equality Officer was satisfied that the ban on the complainant from sharing his faith impacted disproportionately on persons of his faith than on others of different religious faiths or with no faith, thereby establishing a prima facie case of indirect discrimination.

Addressing objective justification the Equality Officer stated that all of the aims presented by the respondent were legitimate but there was no evidence that the complainant had in fact brought the respondent into disrepute and she was not satisfied that the means chosen to achieve the aims were appropriate or necessary.  Following consideration of the caselaw presented she was not satisfied that the sanction of dismissal was appropriate and therefore the respondent has not established objective justification for the dismissal.

The allegations of direct discrimination and indirect discrimination were upheld and the complainant was awarded €70,000 for the effects of the discrimination, approximately 1.5 year’s salary.

In this case the Equality Officer accepted that the right to manifest one’s religious beliefs at work is protected as in the Eweida case.  However, what was at issue in that case was the passive manifestation of religion by wearing of a cross while getting on with work.  In this case what is at issue is the active discussion of faith, with people who have been sought out, during working hours which goes beyond Eweida in my view.  While engaging in such discussions the complainant cannot be entirely focused on his work.  In addition, perhaps a more detailed consideration of the complainant’s compulsion might have been worthwhile.  The Equality Officer accepted this self-proclaimed compulsion as a passion for his religion while she stated “the respondent treated this passion and desire to manifest his religious beliefs as an ‘addiction’.

Finally, this Decision stated that in the absence of any evidence of complaints about the complainant objective justification cannot be upheld and this is the gist of the quotation included above.  The Equality Officer stated in this regard:

The question then was it objectively justifiable to maintain a ban on the complainant speaking about his religion when there was no evidence that it had any impact on him carrying out his duties for the Council or that what he was doing was either offensive, inappropriate or it constituted harassment.”

Why is this case of interest?

• This is perhaps the first substantial complaint upheld on the religion ground.
• The Decision asserts that objective justification for action on the part of the employer cannot be upheld in the absence of any evidence of complaints.
• It suggests that a complaint of offensive or inappropriate behaviour or behaviour amounting to harassment on the religion ground is required before action can legally be taken by an employer thereby, arguably, challenging an employer’s normal entitlement to manage behaviour in the workplace.

Read the full case here: http://www.workplacerelations.ie/en/Cases/2014/June/DEC-E2014-045.html